Thursday, 30 October 2014

Is Abrogating Article 370 a Mistake?

﻿﻿

Source: rediff.com

India is a country which embraced Federalism at the time of
independence from Colonial rule with many nations existing within its ambit. A
noteworthy instance in acknowledging the Federal polity in India is that of
Jammu and Kashmir and Article 370 of the constitution which grants the state an autonomous
status. Since the BJP-led government assumed office at the Centre in May 2014,
the idea of abrogation of this article has been gaining steam. However, this
move may jeopardize India’s already fragile relations with the state of Jammu
and Kashmir and may lead to a forced Balkanisation of the state and defeat the
idea of Cooperative Federalism with which article 370 was enacted.

﻿﻿On July 11,
2014, the Supreme Court of India dismissed a petition challenging the
constitutional validity of Article 370. A bench of Chief Justice RM Lodha,
Justice Pinaki Chandra Ghose and Justice Rohinton Fali Nariman dismissed the
plea by Kumari Vijayalakshmi Jha, who argued that the article was a temporary
provision that lapsed with the dissolution of the state's constituent assembly
in 1957.

However, the impact that this proposed move would have on
the Indian Federal structure are lost in the din of political rhetoric. Why has
this article been the most debated one among all the provisions of the Indian
constitution? What is the BJP’s interest in abrogating it and what impact would
this action have on not only the people of Jammu and Kashmir, but also India as
a whole? These are some of the aspects explored in this essay.

Brief
History

At the time of independence, J&K was a Muslim majority
state with a Hindu ruler, Raja Hari Singh. The state was a bone of contention
between then newly formed Pakistan and India. Being a Muslim state, Pakistan
demanded that the state be a part of that country while upholding the ideals of
secularism, India staked claim at it.

There was no provision in the British approved partition
plan which stated upfront that the Hindu Princely state must accede to India
and the Muslim states to Pakistan. The accession of Junagadh was an example of
the ambiguity consequent to this. Jinnah accepted the accession of Junagadh to
Pakistan in 1947 despite it being predominantly a Hindu province and later a
people’s movement revoked that decision and Junagadh became a part of India.

Article 370 was a result of a refusal by the Hindu
King Raja Hari Singh of Jammu and Kashmir to join either India or Pakistan
after partition. In order to retain sovereignty of the state, despite
Pakistan’s claim over it owing to a Muslim majority in line with the two-nation
theory, led to the state’s monarch siding with the Indian side under special
circumstances. All the other princely
states had chosen sides among the two countries, however, owing to a political
movement under the leadership of Sheikh Abdullah (Father of Farooque Abdullah;
later formed the National Conference), who was opposed to merging with
Pakistan, J&K was granted a special status. In 1947, coming under attack
from NWFP tribes, an Instrument of Accession was signed between Hari Singh and
India which agreed upon maintaining the state’s sovereignty unlike other
princely states. What this meant in effect was that other than specific matters
including defence, communications and foreign policy, the Indian Parliament
would have to seek permission from J&K State Assembly before implementing
any laws in the state. The article was accepted in the Constituent Assembly in
1947 and was adopted in the Constitution in October 1949.

In 1949, PM
Nehru asked Abdullah, who was appointed as the PM of J&K to prepare a draft
of the article (then called Draft Article 306-A) to be appended to the
Constitution in consultation with Dr. Ambedkar.
The then Law Minister Dr. Ambedkar had refused to draft the article on
the grounds that while Abdullah wanted India to defend and develop Kashmir and
that Kashmiris have equal rights all over India, the same rights must not apply
to citizens from other parts of the country in Kashmir. He felt that it was a
betrayal of the national interest. On his refusal, the article was eventually
drafted by Gopalaswami Ayengar who was a minister without a portfolio in the
first Cabinet of India and a former Diwan of Hari Singh. After being introduced
in the Constituent Assembly, the draft Article 306-A faced extensive
opposition, with only Mualana Azad standing in its favour. However, with Pandit
Nehru’s backing, it was adopted and implemented, initially as a temporary arrangement, with hopes of a full integration
in time to come.

The idea of a Plebiscite in J&K to uphold the
people’s voice of the state in framing the state’s constitution was taken up
briefly in the beginning, being discarded eventually in 1949. The Constituent
Assembly of J&K which was to be consulted for any Central Law to be
implemented in the state was constituted in 1951 and dissolved in 1957 and in
the absence of such a body, abrogation of the article 370 is simply
unconstitutional.

Government’s
interest in revoking article 370

The BJP has indicated in the past that once in power, it
would work on abrogating Article 370. Now that they have a government at the
Centre, this seems like an impending reality. A junior Minister in the Prime
Minister’s Office, Jitendra Singh recently said in a statement “We are in the
process of repealing Article 370 and are in talks with the stakeholders,” starting
fresh speculations on the issue. Also veteran
BJP leader L K Advani, in his blog, called for the same in order to facilitate
Kashmir’s further integration into the country. This blog was a tribute
to the founder of Jan Sangh, Shyama Prasad Mukherjee who died in a jail in
J&K in 1953 while leading agitation against the article.

The
reason for BJP to want the article gone is rooted in the history of how it came
about. Being a Right-wing Hindu Nationalist Party, the BJP maintains that after
the implementation of Article 370 in J&K, Sheikh Abdullah was appointed the
Prime Minister of the state. He brought about reforms in the state, especially
pertaining to land which adversely affected the Kashmiri Hindus (especially the
upper caste Pandits) and led to them being relegated in their social standing.
The land-owning Hindu community, as a consequence to the law limiting maximum
land individual holding of 22.75 acres, lost their land during the
redistribution process where any surplus land holdings was distributed among
the peasants who worked on it, mostly Kashmiri Muslims. This led to the idea of
land redistribution mistaken for communalism.

Moreover, since 1950, on several occasions, various
provisions of Article 370 have been overruled by Constitutional orders. As it
stands now, out of 395 total articles in the Indian Constitution, 135 are
alm0st identical to that of the J&K Constitution and 260 articles have been
applied to J&K making the article virtually irrelevant. Although,
officially, J&K still enjoys an autonomous status, in reality, the state is
farther away from autonomy now than it was at the time of independence.

Unfortunately,
the larger implications of scrapping this legislation would impact India’s
relations with J&K, a state which agreed to be a part of the country on the
sole condition of retaining its autonomy. Any attempts at abrogating this
article, would therefore, fuel the already-existent mass resentment against the
Centre. The article, as it is, hasn’t been followed through in entirety,
however, scrapping it completely would lead to a further trust deficit in the
people of the sate towards the Union. For the BJP too, to move past the labels
of being a majority-appeasing, radical Hindu party, it is important to drop
this issue. Moreover, PM Modi, in his Republic Day message this year as the
Chief Minister of Gujarat had emphasized on the critical importance of a
vibrant and functional federal structure in India as the Centre may not always
be able to do justice to the potential and needs of various states. Repealing
article 370 wouldn’t uphold the same vibrant and functional federal structure
he spoke about.

Abrogating the article a mistake

There
is a widespread opposition in the state against speculations of the Centre
abrogating article 370 with the current government being politically opposed by both, the
separatists and the NC.

Article 370
grants the state of J&K special provisions with regards to its political
structure. This article, according to the constitution, can only be abrogated
or modified by the President with the nod from the state government and an
approval by the state’s constituent assembly. By this definition,
constitutionally, the article cannot be abrogated because J&K’s constituent
assembly was dissolved in 1957 after the accession of the state was deemed
complete and ceases to exist now.

Since 1956, when
the Indian constitution was amended at Bakshi Ghulam Mohammad’s insistence,
J&K has slowly but steadily been losing the powers it was guaranteed under
section 370. In 1957, the Delhi Amendment was applied to the state, abolishing
the Sadr-e-Riyasat and PM position in J&K, replacing them with Governor and
CM. There started the complete dilution of autonomy.

The provisions
of the article have time and again been ignored by respective central
governments in India and consequently, it has already been diluted to an extent
of only remaining as a symbolic right to the people of J&K. However,
abrogating it completely would send out a message to the Kashmiri population
that the Centre has failed to recognize the state’s autonomy which was the
essential condition at the time of accession. In an environment of an already
high level of distrust in Kashmiris towards the Indian state, this move could
be seen as an attempt to completely disregard their voice in the constitutional
process, that they have no right over their own political fate.

Essentially, the
problem is in the perception of how the article is seen by the central
government and the state. The state sees it as a constitutional right to
autonomy and self governance while the Centre sees it as an extended temporary
provision which has run its course.

In 1949, India
had taken the matter to the UN and thereafter, several resolutions were passed
relating to it, most of which concluded that bilateral negotiations between
India and Pakistan would be the only way to solve this conundrum. Despite that,
there hasn’t been much said about the issue by either of the countries openly
in the recent times, although, tensions remain on the surface.

There have been
attempts within India to solve the tensions between the Centre and the state
leadership, Beg-Parthasarthy Accord of 1975 being one of them. In 2010 also, a
special group headed by Justice Saghir was sent by then Prime Minister Manmohan
Singh to negotiate the terms of article 370 with the state. However, none of
the efforts by any of the governments has yielded any concrete positive
results.

If this article
is abrogated, the next step would be the Balkanisation of the state into Jammu,
Kashmir and Ladakh regions at the behest of the Centre. History proves that
such a move can have only a detrimental impact on the people of such states.
States emerging from erstwhile Yugoslavia serve as a reminder to this grim
reality.

Conclusion

The call for
abrogation is also indicative of a complete misunderstanding of Indian
federalism which is founded in the theory of unequal federalism. The
constitution has abundant provisions providing special status to various other
states too. Then there are the Fifth and the Sixth Schedule for the Tribal and
Northeastern states. Would these be revoked too in time to come? How then would the centre protect the rights
of those who have neither sufficient representation nor, adequate opportunities
for progress? This unequal but special provision guarantee these protections to
the most marginalized and neglected communities in India, revoking their rights
would result in a sure descent into a similar undemocratic structure which our
founding fathers opposed and fought against.